ORDER
Rengasamy, J.
1. This revision is directed against the dismissal order passed in C.M.P.No. 1345 of 1996 in A.S.SR.No. 47457 of 1996 on the file of the Principal Judge, City Civil Court, Madras.
2. The said petition was filed under Section 5 of the Limitation Act to condone the delay of 1373 days in filing the appeal. The respondent herein filed the suit for ejectment in O.S.No. 3366 of 1987 before the XIV Assistant Judge, City Civil Court, Madras, and the same was decreed ex parte on 20.1.1993. Even though the revision petitioners herein subsequently filed the petition to set aside the ex parte decree passed against them, along with an application to condone the delay of 10 days, the trial court refused to condone the delay and dismissed the petition. Thereafter, a revision was filed before this Court and the same was dismissed on 5.2.1996 and ultimately, an S.L.P. was filed before the Supreme Court and the Supreme Court also rejected the S.L.P. on 7.5.1996 refusing to condone the delay of 10 days in filing the petition to set aside the ex parte decree. It is only thereafter, the petitioners thought of filing an appeal against the ex parte decree passed on 20.1.1993. As there was a delay of more than 3 1/2 years, they filed this petition under Section 5 of the Limitation Act to condone the delay. The learned principal Judge, City Civil Court, Madras, holding that the delay is inordinate and that the grounds given also are not acceptable, dismissed the petition for condonation of the delay. Hence, the petitioners before the court below have come forward with this revision.
3. The learned counsel appearing for the revision petitioners Mr.R. Thiagarajan submitted that the petitioners and the respondent are close relatives, that there is another litigation between the same parties in respect of the very same property pending in this Court, that this suit relates to the settlement executed by the father in law of the first revision petitioner in favour of the respondent herein, who filed the suit for recovery of possession of the suit property on the strength of the settlement deed, that though unfortunately, the said suit was decreed ex parte and the ex parte decree also could not be set aside in spite of the proceedings, which went upto the Apex Court in S.L.P.No. 10491 of 1996, the revision petitioners’ right to file appeal against the ex parte decree cannot be denied, that as the petitioners were hopeful of getting the ex parte decree set aside, they were concentrating only in that proceedings to have the ex parte decree set aside and, as that proceedings has ended against them, they have filed the appeal before the Principal Judge, City Civil Court, Madras, though there is delay of 1373 days, and this delay is not due to any negligence but under the bonafide impression that they will get the remedy in the other proceedings, viz., the petition to set aside the ex parte decree. The learned counsel Mr. Thiagarajan further submitted that the revision petitioners would never intend to cause deliberate delay against their own interest and as they were prosecuting the other proceedings, bonafide, they are exercising the right of appeal bonafide after the previous proceedings is over and therefore, they might be given opportunity to place their defence in the suit so that the suit itself could be disposed of on merit.
4. The learned counsel relied upon the decision on the Apex Court in Collector, Land Acquisition, Anantnag v. Katiji, wherein the Apex Court has held that all the litigants before the Court of law, including the state, have to be treated alike and accorded the same treatment and in the case of condonation of delay, the court should adopt a liberal approach. That was a case in which the state did not file the appeal in time, and the delay had occurred. Therefore, the Apex Court has observed that even though the State has not filed the appeal in time, the state also should be treated like any other litigant before the court. It is true that the Apex Court in that decision observed that the Court cannot presume that the delay was occasioned deliberately or on account of culpable negligence or on account of mala fide?, as a litigant does not stand to benefit by resorting to delay. At the same time, it also observed in that decision.
“4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.”
The word “non-deliberate delay” has some significance because when a party who is conscious of his right, does not approach the court in the manner prescribed under law but causes delay deliberately, certainly it will be injustice to the other side when the opposite party takes advantage of the deliberate delay. Therefore, it is important to point out whether the delay was deliberate or non-deliberate. The liberal approach suggested in the above decision has been followed by this Court also in T. Balasundaram v. R. Palaniswamy, 1996 TLNJ 49. The learned counsel Mr. R. Thiagarajan is very much relying upon an unreported decision of this Court is MM. Mandalappa and Ors. v. H.G.Krishna Reddy & Co., and Ors., L.P.A.No. 27 of 1992, Judgment dated 15.6.1992. In that case also, there was an ex parte decree and the defendants moved the court to set aside the ex parte decree with an application to condone the delay but the same was dismissed by the trial court and the single Judge of this Court also confirmed it. The Letters Patent Appeal filed against that order was also dismissed. Ultimately, when the petitioners wanted to file Special Leave Petition before the Apex Court, the Advocate at Delhi advised the petitioners to file appeal against the ex parte decree and therefore, they filed the appeal wrongly in the City Civil Court, Madras and later on, it was returned for presentation in the proper court. In the meanwhile, there was a delay of 629 days. Therefore, a petition was filed under Section 5 of the Limitation Act to condone the delay of 629 days in filing the appeal. The learned single Judge of this Court dismissed the petition and in the Letters Patent Appeal, filed against that order, the Bench of this Court condoned the delay holding that the delay was on the bona fide belief that they could get the remedy in the earlier proceedings to have the ex pane decree set aide. Further, as the entire decree amount was deposited in the court, the Bench has observed that as the decree amount is in the court deposit, the respondent/plaintiff therein could withdraw the amount after furnishing security and the dispute between the parties could be adjudicated in the Appeal.
5. The learned counsel Mr.R. Thiagarajan very much relies upon this decision to support his argument that there was a bona fide mistake in this case for the petitioners in not filing the appeal within time for the reason that the petitioners were thinking that ex parte decree would be set aside on their application as the delay was only 10 days and therefore, as viewed by the Bench of this Court in L.P.A.No. 27 of 1992, the bona fide mistake cannot be used against the petitioners, who seek for the adjudication of the matter on merits.
6. It is true that as observed by the Apex Court in the decision cited above Collector, Land Acquisition, Anantnag v. Katiji, the Court should adopt a liberal approach for condonation of the delay but at the same time when a party, who was fully conscious of his right to file appeal, did not file the appeal for years together though time was ripe for filing such appeal, the conduct would show the abandoment of the right. In this case, it is not as if the petitioners were not aware of the right to file an appeal soon after the ex parte decree passed on 20.1.1993. No doubt, they were prosecuting the other petition to have the ex parte decree set aside. When they know the dual right, on to have the ex parte decree set aside and the other to prefer appeal against the ex parte decree, and if the party is concentrating upon the remedy in one forum alone, their move after 3 1/2 years to invoke the other remedy also, would show the deliberate in-action and voluntary abandonment of that right. In the other case, viz., L.P.A.No. 27 of 1992 dated 15.6.1992 referred supra, it was only a money suit, decreed ex parte, against the tenant for the arrears of rent and the entire decree amount was deposited in the Court and the decree-holder also was permitted to withdraw the decree amount, after furnishing security. Therefore, when the decree holder himself was able to realise the fruits of the decree, the Bench thought that the dispute could be adjudicated on merit as it had not affected the rights of the decree holder. But this case stands in a different footing because the decree holder, who is the settled under a document, is not able to take possession of the property though the decree was passed on 20.1.993, more than 4 1/2 years ago as on today. Therefore, this case cannot be compared to that of the dispute in L.P.A.No. 27 of 1992 of this Court.
7. Another important aspect to be note is that though the S.L.P. before the Supreme Court was dismissed on 7.5.1996, the petition under Section 5 of the Limitation Act to condone the delay in filing the appeal was filed only on 25.11.1996 that is after a delay of more than 5 1/2 months. The petitioners have not explained the reason for such a delay even after the disposal of the S.L.P. in May 1996. The learned counsel Mr. Thiagarajan submitted that the counsel at Delhi had conveyed to the petitioners only some time after the dismissal order by the Apex Court and immediately, the petitioners filed the appeal before the Principal Judge, City Civil Court, Madras. But no details have been given in the affidavit filed by the revision petitioners as to when they came to know about the dismissal order passed by the Apex Court in the S.L.P. When the affidavit reads that the S.L.P. was dismissed on 7.5.1996, it could be taken that the counsel could have informed the petitioners at the most within a period of one month. Even thereafter for nearly four months, the petitioners had not taken steps to file the appeal. Anyhow, the delay is inordinate being more than 3 1/2 years. As observed above, apart from the fact that the petitioners did not intend to exercise their right of filing appeal for more than 3 1/2 years, proving their abandonment, the delay subsequent to the disposal of the S.L.P. also has not been properly explained. Therefore, I find that there are no sufficient grounds to condone the delay in this case. Hence, the court below was justied in dismissing the petition. As I find no acceptable reasons to interfere with the order of the court below, the revision is dismissed in the admission stage. Consequently, C.M.P.No. 1751 of 1997 is dismissed.
